Tag Archive for: First Amendment

Cyrus Mehta

Will United States v. Hansen Come Back to Bite Trump?  

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By Cyrus D. Mehta and Kaitlyn Box*

Former President Trump was indicted on August 1, 2023 by Special Counsel Jack Smith for his efforts to overturn the 2020 elections. Although Trump believes his actions were protected by the First Amendment, a recent Supreme Court case involving an immigration statute, United States v. Hansen,  held that speech constituting fraud  is not protected under the First Amendment.  Will Hansen come back to bite Trump?

In two previous blogs, here and here, we have discussed the United States v. Hansen case, the central question of which was whether INA §274(a)(1)(A)(iv), or the “encouragement provision”, which prohibits individuals from “encourag[ing] or induc[ing] an alien to come to, enter, or reside in the United States, knowing or in reckless disregard of the fact that such coming to, entry, or residence is or will be in violation of law” is unconstitutionally overbroad. Helaman Hansen, who ran an organization called Americans Helping America Chamber of Commerce (“AHA”) purporting to help undocumented immigrants become U.S. citizens through adult adoption, had been convicted of violating INA §274(a)(1)(A)(iv) because he encouraged or induced individuals who participated in his program to overstay their visas on two occasions.

Hansen’s convictions eventually were vacated by the Ninth Circuit, which held that the encouragement provision is overbroad and unconstitutional, as it prohibits a broad range of protected speech . Hansen and amici argued that the encouragement provision could punish even a lawyer who provides certain types of legal advice to a noncitizen, or an aide worker who advises an undocumented immigrant to take shelter in the U.S. during a natural disaster.  The government sought review by the Supreme Court, asserting among other arguments, that INA §274(a)(1)(A)(iv) is not facially overbroad because the terms “encourage” and “induce” in the encouragement provision are terms of art borrowed from criminal law that refer to specific and egregious conduct, namely facilitation and solicitation. The Supreme Court granted certiorari and, in its decision issued on June 23, 2023, held that the encouragement provision is not unconstitutionally overbroad because it uses “encourage or induce” “in its specialized, criminal-law sense—that is, as incorporating common law liability for solicitation and facilitation”.

In our previous blogs, we noted the troubling implications that Hansen could have for immigration lawyers and their ability to effectively advise their clients, as the plain language of the statute could be read to prohibit an immigration lawyer from advising an undocumented client to remain in the U.S. to avail of an immigration benefit that would be unavailable to the client if he left the country. We also noted that immigration lawyers might choose to adopt a practice of advising clients only about the risks and benefits of remaining in the U.S., though giving elliptical advice of this kind might not always constitute competent representation. In its decision, however, the Supreme Court read the encouragement provision to narrowly apply only to intentional facilitation and solicitation. By making it clear that the encouragement provision “stretches no further than speech integral to unlawful conduct, which is unprotected”, the Supreme Court’s decision may alleviate, at least in part, concerns that upholding the provision would have a chilling effect on competent legal advice.

Hansen has recently come back into the spotlight in relation to Donald Trump’s August 1, 2023 indictment on four charges under federal statutes – conspiracy to defraud the United States, conspiracy to obstruct an official proceeding, obstruction and attempt to obstruct a federal proceeding, and conspiracy against rights – stemming from the administration’s efforts to overturn the results of the 2020 presidential election. Trump’s supporters, including his lawyer John Lauro, have portrayed the indictment as an attack on Trump’s First Amendment right to engage in political speech. As Walter Olson points out in a Cato Institute essay, the indictment itself outlines many of the false claims that Trump made in the context of the 2020 presidential election, but does not explicitly “punish the former president for speech or advocacy as such”. Moreover, the Constitution’s generous protections of political speech do not extend to all types of speech, including speech constituting fraud, as analyses of the indictment have noted.  The Supreme Court’s holding in Hansen makes clear that the First Amendment does not protect speech that facilitates the commission of crimes under federal statutes. Helaman Hansen, too, had been charged with criminal solicitation under INA §274(a)(1)(A)(iv) and the Supreme Court ultimately rejected the idea that his conduct was protected by the First Amendment. The Supreme Court in Hansen, quoting Illinois ex rel. Madigan v. Telemarketing Associates, Inc., 538 U.S. 600, 612 (2003), clearly noted that “the First Amendment does not shield fraud[.]” In an Election Law Blog post, Ciara Torres-Spelliscy observes that “…the Supreme Court […] treats fraud as a different and unprotected category that is outside of the First Amendment’s protections.”

The Trump administration was characterized by overwhelming negative views on immigrants and the promulgation of draconian immigration policies, many of which are analyzed in our prior blogs. In his remarks to the Executive Office for Immigration Review in 2017, then-Attorney General Jeff Sessions once made a reference to “dirty immigration lawyers”, indicating that the administration held immigration lawyers in contempt, as well. It is thus ironic that the same Supreme Court decision that could leave immigration lawyers vulnerable to prosecution has the potential to snare Trump himself, as well. Hansen is a rather double-edged decision – although it could have problematic aspects for immigration lawyers, it may by the same token prove useful in striking down any claims by Trump that the misinformation he spread in an attempt to fraudulently overturn the 2020 election is protected as First Amendment speech.

*Kaitlyn Box is a Senior Associate at Cyrus D. Mehta & Partners PLLC.

Cyrus Mehta

Providing Competent Representation to Undocumented Noncitizens Despite the Criminal Encouragement Provision 

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By Cyrus D. Mehta and Kaitlyn Box*

Our previous blog discussed United States v. Helaman Hansen, a case in which the Supreme Court granted certiorari on December 9, 2022. Oral argument in the case is set for March 27, 2023. Hansen questions whether INA §274(a)(1)(A)(iv), or the “encouragement provision”, which prohibits individuals from “encourag[ing] or induc[ing] an alien to come to, enter, or reside in the United States, knowing or in reckless disregard of the fact that such coming to, entry, or residence is or will be in violation of law” is unconstitutionally overbroad. Helaman Hansen ran an organization called Americans Helping America Chamber of Commerce (“AHA”) that purported to help undocumented immigrants become U.S. citizens through adult adoption. In reality, this is not possible, and Hansen was convicted for having violated INA §274(a)(1)(A)(iv) because he encouraged or induced individuals who participated in his program to overstay their visas on two occasions.

Hansen first moved to dismiss his convictions based on a violation of INA §274(a)(1)(A)(iv), arguing that this provision is facially overbroad, void for vagueness, and unconstitutional as applied to him, but the district court denied his motion. He then appealed to the Ninth Circuit, arguing in relevant part that INA §274(a)(1)(A)(iv) is facially overbroad under the First Amendment. The Ninth Circuit agreed, holding that the encouragement provision prohibits a broad range of protected speech. One could violate 8 U.S.C. § 1324(a)(1)(A)(iv) merely by “knowingly telling an undocumented immigrant ‘I encourage you to reside in the United States’”, the court reasoned. The government is seeking review of the Ninth Circuit’s decision at the Supreme Court. The government’s brief focuses on the argument that INA §274(a)(1)(A)(iv) is not facially overbroad because the terms “encourage” and “induce” in the encouragement provision are terms of art borrowed from criminal law that refer to specific and egregious conduct, namely facilitation and solicitation. The government further argues that the statutory history and context of the encouragement provision indicate that it is aimed at punishing facilitation and solicitation, rather than a broader range of conduct. The government also asserts that fear of prosecution under the encouragement provision are unlikely to chill legitimate advice to undocumented immigrations because the fraud counts Hansen was charged with require that the offense be “done for the purpose of commercial advantage or private financial gain”, a criterion that would not be met in many scenarios.

AILA and numerous other immigration organizations filed an amicus brief that points out the troubling implications that the encouragement provision could have for immigration lawyers:

Elliptical counseling is particularly ill-suited to the immigration context, which is high-stakes and complex. Clients in this area need straightforward advice about what to do. And it would be especially strange to fault attorneys for advising noncitizen clients about remaining in the United States in violation of civil immigration laws, when those laws themselves condition numerous benefits on physical presence in the United States.

The brief cites our previous blog on Hansen as evidence that “The immigration bar has taken note of the government’s arguments about the Encouragement Provision, and is actively discussing when and how immigration practitioners should self-censor to avoid criminal liability”. Amici also point out that while the “financial gain” requirement contained in the provisions that Hansen was charged under might exempt well-intended advice given to a noncitizen by a priest or social worker, it “leaves large quantities of immigration advice within the statute’s reach” as private lawyers, and sometimes even those who work for a nonprofit organization, often charge at least a nominal fee for their services. Given the complexity of immigration law, the idea that lawyers could be deterred from providing advice to clients for fear of being punished under the encouragement provision is particularly troubling. Many immigration benefits are only available to noncitizens who are physically present in the United States, so an immigration lawyer could competently and ethically advise an undocumented client to remain in the U.S. for a variety of reasons. In Upjohn Co. v. United States, 449 U.S. 383 (1981), the Supreme Court recognized the importance of encouraging “full and frank communication between attorneys and their clients and thereby promot[ing] broader public interests in the observance of law and administration of justice”. The most severe consequence for a violation of immigration law is deportation, which is a severe and potentially life-altering punishment. For this reason, it is of the utmost importance that immigration lawyers be able to freely advice their clients.

In our previous blog, we suggested that a best practice for immigration lawyers in light of Hansen is to refrain from expressly advising or encouraging clients to remain in the U.S. in violation of the law, and instead outline both the adverse consequences and potential benefits of this course of action. Moreover,  ABA Model Rule 1.2(d), which has analogs in many state rules of professional responsibility, states that “[a] lawyer shall not counsel a client to engage, or assist a client, in conduct that the lawyer knows is criminal or fraudulent, but a lawyer may discuss the legal consequences of any proposed course of conduct with a client and may counsel or assist a client to make a good faith effort to determine the validity, scope, meaning or application of the law.” ABA Model Rule 1.2(d) may thus provide some refuge for lawyers who competently counsel undocumented clients. Given the strikingly broad sweep of INA §274(a)(1)(A)(iv), it is unclear how much protection it would provide to a lawyer who was prosecuted under the encouragement provision.

First, encouraging an undocumented client to stay in the US may be a violation of a civil statute, rather than constitute criminal or fraudulent conduct. The analog of Rule 1.2(d) in the New York Rules of Professional Conduct states: “[a] lawyer shall not counsel a client to engage, or assist a client, in conduct that the lawyer knows is illegal or fraudulent, except that the lawyer may discuss the legal consequences of any proposed course of conduct with a client.” Although the New York version of Rule 1.2(d) prohibits a lawyer from counseling or assisting a client in conduct that is “illegal,” we question whether advising an undocumented person to remain in the US in order to seek a benefit under INA constitutes conduct that is illegal. We also recognize that a noncitizen who has been ordered removed and who fails to depart within 90 days can incur criminal liability under INA § 243(a). However, INA § 243(a)(2) provides an exception from criminal liability if willfully remaining in the US is for the “purpose of securing cancellation of or exemption from such order of removal or for the purpose of securing the alien’s release from incarceration or custody.” A noncitizen who received a final removal order may move to reopen, even many years later, if the government consents to reopening and there is available relief against deportation. See 8 C.F.R. § 1003.2(c)(3)(iii); 8 C.F.R. § 1003.23(b)(4)(iv).

Further, a lawyer who hedges his advice in conditional probabilities may be at risk of failing to provide competent representation. Even the government’s brief assures that lawyers  will not be prosecuted if  they advise their clients that they are unlikely to be removed. This is in contrast to a lawyer strongly recommending that the undocumented client remain in the US in the hope of seeking a benefit in the future, and the government’s brief does not provide any assurance that such advice would insulate the lawyer from prosecution under INA §274(a)(1)(A)(iv). The government offers the example of a lawyer advising a client in removal proceedings who has been released on bond to stay in the US but that is different from advising an undocumented client whose US citizen child will turn 21 in two years to remain in the US, which is when the parent would qualify for adjustment of status.

Some clients may be unable to interpret opaque advice from their lawyers, and a lawyer may not provide adequate representation in this scenario unless she gives the client a clearer recommendation.  ABA Model Rule 1.1 and some state analogs caution that “a lawyer shall provide competent representation”, the “shall” language leaving little room for error. Additionally, as noted above,  it may be necessary for an immigration lawyer to frankly advise an undocumented client to stay in the US in order to apply for a benefit like adjustment of status, a T visa, or DACA, which would be unavailable to the client if she left the country. It is difficult to imagine how a lawyer could provide competent representation to her client without outlining the immigration benefits that the client may be eligible for and advising him how to obtain them by remaining in the US.  INA §274(a)(1)(A)(iv) would chill the ability of the lawyer to provide such advice and thus inhibit competent representation. Operating within the contours of Rule 1.2(d) might impede rather than facilitate competent representation in the immigration context, although until the Supreme Court provides more clarity, immigration lawyers will need to operate within the framework of Rule 1.2(d).

Regardless of the outcome in US v. Hansen, a lawyer ought not to be sanctioned under either INA §274(a)(1)(A)(iv) or Rule 1.2(d) who advises an undocumented client to remain in the US if the lawyer is doing so as part of competent representation.

*Kaitlyn Box is a Senior Associate at Cyrus D. Mehta & Partners PLLC.

Cyrus Mehta

United States v. Hansen: Supreme Court Once Again Agrees to Hear Constitutionality of a Smuggling Statute That Could Impact Immigration Lawyers

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By Cyrus D. Mehta and Kaitlyn Box*

On December 9, 2022, the Supreme Court granted certiorari in United States v. Helaman Hansen, a case that poses the question whether the federal criminal prohibition on encouraging or inducing unlawful immigration for commercial advantage or private financial gain in violation of  INA §274(a)(1)(A)(iv) is unconstitutionally overbroad. Helaman Hansen ran an organization called Americans Helping America Chamber of Commerce (“AHA”) that purported to  help undocumented immigrants become U.S. citizens through adult adoption. Hansen falsely advised these individuals that many undocumented immigrants had successfully become U.S. citizens through his program. In reality, it is not possible to obtain U.S. citizenship through adult adoption. Hansen was convicted of several counts of fraud in California, and was found to have violated INA §274(a)(1)(A)(iv) because he encouraged or induced individuals who participated in his program to overstay their visas on two occasions. He first moved to dismiss the two fraud counts that were based on a violation of INA INA §274(a)(1)(A)(iv) on the ground that this provision is facially overbroad, void for vagueness, and unconstitutional as applied to him, but the district court denied his motion.

Hansen then appealed to the Ninth Circuit, arguing in relevant part that INA §274(a)(1)(A)(iv) is facially overbroad under the First Amendment. The government argued that  that subsection (iv) was limited to speech integral to criminal conduct, specifically solicitation and aiding and abetting. The Ninth Circuit disagreed, holding that the provision prohibits a broad range of protected speech. One could violate 8 U.S.C. § 1324(a)(1)(A)(iv) merely by “knowingly telling an undocumented immigrant ‘I encourage you to reside in the United States’”, the court reasoned. The court held INA §274(a)(1)(A)(iv) is unconstitutionally overbroad, and reversed Hansen’s convictions under this provision.  The government is seeking review of the Ninth Circuit’s decision at the Supreme Court, arguing in part that it has historically construed the “encourage” or “induce” language of INA §274(a)(1)(A)(iv) very narrowly to prosecute those who engaged in serious criminal conduct.

The same First Amendment overbreadth argument at issue in Hansen was addressed two years ago in United States v. Evelyn Sineneng-Smith. We discussed this case at length in a previous blog, excerpts of which are reproduced here. United States v. Evelyn Sineneng-Smith involved an unauthorized practitioner who operated an immigration consulting firm in San Jose, California. Sineneng-Smith represented mostly natives of the Philippines who were unlawfully employed in the home health care industry and who sought to adjust their status to permanent residence through the filing of a labor certification by an employer.  These clients were not eligible to apply for adjustment of status in the United States under INA § 245(i) which expired on April 30, 2001 and they also did not appear to be grandfathered under this provision. Although Sineneng-Smith knew that her clients were not eligible under 245(i), she continued to sign retainer agreements with them and tell them that they could apply for green cards in the United States. At least two of the clients testified that they would have left the country if they were advised that they were not eligible to apply for permanent residence.

Sineneng-Smith was convicted by a jury on two counts of encouraging and inducing an alien to remain in the United States for the purposes of financial gain, in violation of INA §274(a)(1)(A)(iv) and INA §274(a)(1)(B)(i). She was also convicted on two counts of mail fraud in violation of 18 U.S.C. §1341. The Ninth Circuit reversed her convictions under INA §274(a)(1)(A)(iv) and INA §274(a)(1)(B)(i) on the ground that “encourage” and “induce” under their plain meaning restrict vast swaths of protected expression in violation of the First Amendment despite the government countering that the statute only prohibits criminal conduct and a narrow band of unprotected free speech. The court provided several examples of seemingly innocuous conduct that could constitute a criminal violation of the provision, including one that is especially troubling for immigration lawyers – an attorney telling her client that she should remain in the country while contesting removal, because, for example, non-citizens within the United States have greater due process rights than those outside the United States, and because as a practical matter, the government may not physically remove her until removal proceedings have been completed. The Supreme Court ultimately dismissed the case on other grounds, particularly for having departed from the party presentation principle.

It remains to be seen how the Supreme Court rules in Hansen, but its decision could carry important implications for immigration lawyers. Given the striking breadth of INA §274(a)(1)(A)(iv), a lawyer telling an undocumented client simply “I encourage you to remain in the United States” – perhaps because the client would later become eligible to seek adjustment of status – could render her vulnerable to prosecution. The Ninth Circuit in Hansen provided numerous other examples of protected speech that could potentially be prosecutable according to the plain text of the statute, including encouraging an undocumented immigrant to take shelter during a natural disaster, advising an undocumented immigrant about available social services, telling a tourist that she is unlikely to face serious consequences if she overstays her tourist visa, or providing certain legal advice to undocumented immigrants.

The Ninth Circuit considered a case that illustrates how easily an immigration lawyer could violate INA §274(a)(1)(A)(iv) by discussing even general immigration policies and consequences with undocumented clients. In United States v. Henderson, 857 F. Supp. 2d 191 (D. Mass. 2012), the government prosecuted a U.S. Customs and Border Patrol supervisor under this provision for “advis[ing her undocumented] cleaning lady generally about immigration law practices and consequences.” 857 F. Supp. 2d at 193. As Judge Bumatay points out in his dissent of the Ninth Circuit’s decision denying an en banc hearing,  the conduct at issue in Henderson may be more egregious than it first appears – the CBP supervisor knowingly engaged an undocumented employee and “coach[ed] the employee on how to evade immigration authorities while residing in the country”. Still, the majority  in Hansen cited the example of  Henderson being prosecuted for advising her cleaning lady about  immigration law practices and consequences, and thus “makes plain the ability of subsection (iv) to chill speech.” While the government has maintained that it will use INA §274(a)(1)(A)(iv) to prosecute persons who engage in the sort of criminal conduct that Hansen engaged in, this broad provision could also allow an overzealous prosecutor to go after a well meaning worker in a nonprofit who encourages an undocumented immigrant to take shelter during a natural disaster.

In the absence of clarity on how INA §274(a)(1)(A)(iv) could be applied to immigration lawyers advising their clients, practitioners can refrain from expressly advising or encouraging clients to remain in the U.S. in violation of the law, and instead outline both the adverse consequences and potential benefits of this course of action to clients. Immigration lawyers should also keep in mind that ABA Model Rule 1.2(d), which has analogs in many state rules of professional responsibility, states that “[a] lawyer shall not counsel a client to engage, or assist a client, in conduct that the lawyer knows is criminal or fraudulent, but a lawyer may discuss the legal consequences of any proposed course of conduct with a client and may counsel or assist a client to make a good faith effort to determine the validity, scope, meaning or application of the law.” While it may be unlikely that an immigration lawyer advising an undocumented client to remain in the United States in order to become eligible for an immigration benefit down the road would be prosecuted under INA §274(a)(1)(A)(iv), but presenting the general consequences and benefits of remaining in the U.S. in violation of the law, as well as staying within the confines of ABA Model Rule 1.2(d), can offer practitioners some guidelines for avoiding potential liability.

(This blog is for informational purposes and should not be viewed as a substitute for legal advice).

*Kaitlyn Box is a Senior Associate at Cyrus D. Mehta & Partners PLLC.

 

Cyrus Mehta

Is Being Anti-Trump A New Ground Of Inadmissibility?

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Over the weekend, a Canadian student of McGill University, Joseph Decunah, who was seeking to be admitted to protest at the Women’s March the day after President Trump’s inauguration was refused admission. He was in the company of two US citizens who were allowed to cross. Decunah was point blank asked “Are you anti or pro-Trump?”

After Decunah indicated he was anti-Trump as he had nothing to hide, the CBP officer engaged in further questioning about why he opposed Trump, and the Canadian entrant spoke about the Affordable Care Act and some of the outrageous statements that Trump has made towards minorities. Then from there, the questioning moved on, according to Decunah, to determine if he and the two others in his group were extremists or not. He was asked about where he had been, and if he has ever been to the Middle East. The CBP officer then asked him about his political engagements, to which Dacunah responded that he had been a member of the NDP (New Democratic Party) in the past.

The CBP officer then alleged that Decunah would engage in “silent disruption” as a protestor in the march. He said, according to Decunah, “Would you agree that by standing in these crowds, that even though you may be a pacifist, that you would be disrupting events?”  Decunah’s partner Ruth mentioned that the Women’s March had permits from the Metropolitan Police Department and the National Park Service. “It’s not like we’re participating in anything illegal. [The guard] dropped the term “silent disruption” a few more times and then tried to explain that there were a series of bins Canadians have to fall into when they’re entering the United States,” according to Decunah.” One of those things can be tourism, one of those things can be for work or whatever it may be in that attending a march of any sort wouldn’t fall into one of those bins.”

We hope that this was an isolated incident, and not part of a growing disturbing trend under a Trump presidency. However, there have been other similar reported incidents of Canadians being blocked entry into the United States on the day of the protest.  While there is no specific mention in the Foreign Affairs Manual about whether coming to the United States to be part of a peaceful protest is a legitimate activity as a visitor for pleasure, it clearly ought to be. Under 22 CFR 41.31(b)(2) pleasure is defined as “Legitimate activities of a recreational character, including tourism, amusement, visits with friends or relatives, rest, medical treatment and activities of a fraternal, social or service nature.” Clearly, being part of a peaceful protest with like-minded people could constitute activities of a “fraternal” or “social” nature. 9 FAMe 402.2-4(A)(3) also contemplates as visitors for pleasure “[p]articipants in conventions of social organizations.”

Of course, the CBP officer can rely on other grounds of inadmissibility under the INA. One potential ground is under INA 212(a)(3)(A)(i), which allows a consular or border officer to find inadmissible one, if there are reasonable grounds to believe that he or she seeks to enter the United States to engage principally or incidentally in “any other unlawful activity.” It is purely speculative and a stretch for a CBP officer to assume that an anti- Trump protestor, as opposed to a pro-Trump supporter, may more likely engage in a form of civil disobedience, resulting in unlawful activities such as blocking traffic. It is even more absurd to refuse entry to one who will engage in “silent disruption.” The First Amendment of the US Constitution ought to preclude the assumption that exercise of the right to peaceably assemble is likely to involve the violation of law.

Trump, who is likely to continue being a controversial President, will generate more protests in the future. It would undermine America’s image as a free country if visitors from abroad are barred if they are specifically coming to participate in a peaceful anti-Trump protest. Immigration policy does not operate in a vacuum. There have already been troubling signs of Trump repeatedly attacking the press as being dishonest, thus undermining the First Amendment. Consuls and border officers should not feel emboldened as a result by allowing their personal prejudices to cloud their objectivity in determining who is a bona fide visitor. Otherwise, and most unfortunately, being anti-Trump might de facto become a new ground of inadmissibility. This is because there are very limited grounds to challenge the decision of a border officer. Similarly, under the recent Supreme Court decision in Kerry v. Din, a consular officer’s decision is virtually unreviewable if the applicant was simply informed about the section number in the INA as the basis for the denial. These officers are bestowed with great power and must use their power wisely. While they are obligated to ensure that those who potentially threaten to harm the United States do not come in, they should allow peaceful protestors who wish to exercise and celebrate the rights that are enshrined in the First Amendment.

Cyrus Mehta

How Cyrus’ View of Religious Toleration May Have Inspired the American Constitution

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By Gary Endelman and Cyrus D. Mehta

The display of the Cyrus Cylinder in museums across America has sparked interest on whether Cyrus, who founded the Persian Empire in 549 BC, may have influenced the U.S. Constitution.1  Our essay explores  the  extent to which Cyrus  may have influenced one of the Founding Fathers, Thomas Jefferson, who in turn inspired the Religion Clauses in the First Amendment, which provide: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof…”.

The Cyrus Cylinder describes how Cyrus freed people enslaved by the Babylonians, and allowed them to practice their religion and returned their various gods to their sanctuaries. A notable inscription from the Cyrus Cylinder reads, “I returned them unharmed to their cells, the sanctuaries that make them happy.” 2  The Cyrus Cylinder, often referred to as the first charter of human rights, demonstrates that Cyrus was a tolerant king who allowed people in his vast multinational empire to freely practice their various religions. The Old Testament also has references to Cyrus permitting the Jews to return from exile and to rebuild their temple in Jerusalem.  Indeed, the father of Israeli independence, David Ben Gurion, openly cited Cyrus as a hero and President Harry S. Truman proudly compared himself to Cyrus when, in 1948, the United States became the first nation to recognize the new state of Israel. Much as Cyrus ended the Babylonian captivity, enabling the Jews to return to their biblical homeland and rebuild their ancient temple, Truman made possible the re-establishment of an independent Jewish state after almost 2000 years.

Although the Cyrus Cylinder was discovered long after the death of the Founding Fathers of the U.S. Constitution in 1879, it is well known that Jefferson was influenced by Xenophon’s Cyropaedia, which dwells on Cyrus as an ideal ruler, although it is by no means a historical account. It is well known that Jefferson possessed two copies of Cyropaedia – one of which was a Greek and Latin version. All the Founders were familiar with Xenophon’s Anabasis and Isaiah in the Hebrew Scriptures. Jefferson mentions Xenophon as a master of rhetoric in his autobiography. Xenophon viewed Cyrus as a just and tolerant ruler, who ruled over his subjects with persuasion rather than through force. Cyrus did not force his religion, presumably a Zoroastrian, on the various subjects of his vast empire. 3

There are also several biblical references to Cyrus, most notably the words of Deutero-Isaiah, in which he presents Cyrus in a divine manner: “That says to Cyrus, He is my shepherd, and shall perform all my pleasure; even saying to Jerusalem, Thou shalt be built; and to the temple, Thy foundation shall be laid.” 4 Surely, these references to Cyrus would not have escaped Jefferson’s attention, given that he was a keen student of Xenophon’s Cyrus. Jefferson’s interest in and appreciation for Cyrus was an inheritance from the Scottish Enlightenment.  Scottish intellectuals often cited Cyrus in their own efforts to arrive at the proper relationship of church and state. 5

Jefferson strongly believed that religion was a personal matter and should be free from government influence. In his Notes on the State of Virginia, Query XVII,  Jefferson objected to laws that allowed children who could be taken from their parents if they had not been baptized by stating, “But it does me no injury for my neighbor to say that there are twenty gods, or no gods. It neither picks my pocket nor breaks my leg.” 6 It was in Jefferson’s letter to the Danbury Baptist Association in 1802, in response to why as President he had not proclaimed national days of fasting that he famously referred to the “wall of separation between church and state” which has served as the basis for interpreting the Establishment Clause. 7

Like Cyrus, Jefferson saw in the lack of government intervention not the absence of piety but the creation of an opportunity for the robust expression of individual conscience. Cyrus’ true gift to Jefferson and to us is the sublime realization that liberty of thought and action is the one true measure of devotion whose inheritance can only strengthen those bonds which unite a people to their rulers and to their God.  The measure of great power Cyrus knew and the Founders realized was not its ruthless exposition but the principled decision to refrain from its exercise. It was this insight that turned imperial obedience into civic acceptance both for ancient empires and the young republic. The one true test of power is the strength not to use it, either to compel the dictates of individual conscience or to shape the conduct of subjects and citizens in the public arena.

The First Amendment in the U.S. Constitution expresses America’s commitment to religious pluralism through two provisions – one protecting the free exercise of religion (the Establishment Clause) and the other barring the establishment of the religion (the Free Exercise Clause). The interpretation of these two clauses has remained contentious, but their very existence has endowed freedom of worship with a secular legitimacy that it might otherwise have lacked, much as Cyrus did  by treating diversity as a source of strength not weakness. While some believe that the government should strictly enforce separation by not supporting any form of religion in schools or other governmental institutions, including references to God on currency and pledeges, others contend that the Judeo-Christian values of the Founding Fathers provide a historical sanction for overt religiosity such as prayer in public school and references to God in the public sphere. 8

Notwithstanding the lack of unanimity in interpreting the  Religion Clauses, America has been  successful in integrating so many groups of immigrants since its founding  as it is  similar to Cyrus’ model, where the government does not support one dominant religion while at the same time is not against religion. Indeed, the American model relating to freedom of religion was later adopted in the Indian Constitution. Even though India  is a religious country, where the majority belong to the Hindu religion, it is also a home to other major religions. The Indian Constitution in Article 25 grants to citizens of India of all religious persuasions freedom to profess, practice and propagate their faith in a way that does not disrupt public order and does not affect public health and morality adversely. It is thus no coincidence that Zoroastrians and Jews have been able to worship freely, and prosper, in India and America.

 In an age where governmental actors are increasingly foisting their religious beliefs on people, resulting in strife, Cyrus’ model of not interfering in religion, which influenced America’s and India’s system of government, is worthy of further consideration and emulation even in the second decade of the  21st century. Cyrus understood that only the strong can be tolerant, that the wise ruler encourages a government powerful enough to protect the people but wise enough to restrain it.

Whatever doubts Jefferson may have entertained on key Christian doctrines, such as the divinity of Jesus or the truth of his resurrection, he did not feel the need to impose such skepticism upon others, respecting their faith even as he doubted the value of adopting it. For Cyrus and Jefferson, tolerance was at the core of their approach towards governance. As effective rulers, they made it easy for those whose beliefs they did not share to accept, indeed to embrace, their political supremacy, whether it be the evangelical Baptists who loved Jefferson or the ancient Hebrews who honored Cyrus. Circumspect in their public manifestations of piety, Cyrus in his day and Jefferson in his knew the pragmatic dividend to be reaped from toleration. The Declaration of Independence speaks fleetingly of “Nature and Nature’s God” and the Constitution makes no mention of the Deity nor imposes any religious test for office. Cyrus and the Founding Fathers sought not to banish religion but to subordinate it as an organizing principle to what they regarded as a more meaningful immortality, imperial fame for Cyrus and the republican nobility of the American revolutionary experiment for Jefferson. That was the one, true and abiding glory they both sought.

As more countries in a globalized world attract immigrants who follow different religions, Cyrus’ model of religious toleration will go a long way in fostering peace and harmony. The fact that in America new immigrant groups can freely establish their places of worship, even after facing religious persecution elsewhere, is redolent of the inscription on the Cyrus Cylinder that “I returned them unharmed in their cells, in the sanctuaries that make them happy.” The lasting attraction of America was and remains the one central truth that here one could become all that they were capable of being regardless from where they came from. For that to live on, the American creed has always celebrated personal freedom and religious diversity. No one in the ancient world exemplified that more completely than Cyrus. That is the enduring meaning of what Cyrus first established more than 2,000 years ago by allowing people for the very first time to freely practice their own religion, and which inspired Xenophon’s Cyropaedia.

Cyrus was not a Jeffersonian reformer and the link between them is more diffuse than direct. In our desire to make Cyrus relevant, we must not forget that, like all rulers, he was a product of his own time.  Yet, it remains true to note that his philosophy of toleration lived on far beyond what Cyrus ever could have imagined and its continuing influence upon those who launched the American experiment in freedom was  both pervasive and undeniable. Thomas Jefferson was hardly a naïve reformer. Like the other Founding Fathers, he followed Cyrus not because he shrank from power but because he wished to exercise it more effectively, knowing that the ability to weave together a mosaic of culture and thought will in the end produce a more enduring fabric. This remains our most sacred inheritance.

Gary Endelman is the Senior Counsel at FosterQuan, Houston, TX. Mr. Endelman graduated with a B.A. in History from the University of Virginia, a Ph.D. in United States History from the University of Delaware, and a J.D. from the University of Houston. From 1985 to 1995, he was with one of the largest immigration firms in the country. From 1995 to 2011, he was the in-house immigration counsel for BP America Inc. He is a frequent national speaker and writer on immigration related topics. In July 2005, Mr. Endelman testified before the United States Senate Judiciary Committee on comprehensive immigration reform. The views expressed by Mr. Endelman in this article are his personally and not those of FosterQuan

Cyrus D. Mehta, a graduate of Cambridge University and Columbia Law School, is the Managing Member of Cyrus D. Mehta & Associates, PLLC in New York City. He is the current Chair of the American Immigration Lawyers Association’s Ethics Committee and former Chair of AILA’s Pro Bono Committee.  He is a frequent speaker and writer on various immigration-related issues, and is also an adjunct associate professor of Law at Brooklyn Law School.  Mr. Mehta received the AILA 2011 Michael Maggio Memorial Award for his outstanding efforts in providing pro bono representation in the immigration field. Mr. Mehta was named Best Lawyers’ 2013 New York City Immigration Law “Lawyer of the Year”. The views expressed by Mr. Mehta in this article are his personally and do not not those of any of the organizations he is a part of.

1. See e.g. Cyrus Cylinder: How a Persian monarch inspired Jefferson, BBC News, http://www.bbc.co.uk/news/world-us-canada-21747567 ↩

2. The British Museum Translation of the Text on the Cyrus Cylinder, http://www.britishmuseum.org/explore/highlights/articles/c/cyrus_cylinder_-_translation.aspx  ↩

3. In Mary Boyce, Zoroastrians – Their Religious Beliefs, the author at p.51 suggests that Cyrus was a Zarathushti as there was evidence of fire holders and that one of his daughters was referred by the Greek writers as “Atossa,” which in Persian is “Hutaosa,” who was the queen of King Vishtaspa, Zarathustra’s first royal patron. Clearly, Cyrus’s successors such as Darius and later were more explicit that they were Zarathushtis and invoked Zarathustra’s God, Ahura Mazda.  ↩

4. For a commentary on the biblical references to Cyrus, See Joseph Wiesehöfer, Ancient Persia, I.B. Taurus; Pierre Briant, From Cyrus to Alexander – A History of the Persian Empire, Eisenbrauns; Mary Boyce, supra.  ↩

5. Ancient Persia Influenced Thomas Jefferson, US Democracy, IIP Digital, US Department of State, http://iipdigital.usembassy.gov/st/english/article/2013/03/20130312143982.html#ixzz2RsF6GhFX  ↩

6. Notes on the State of Virginia, Query XVII, http://etext.virginia.edu/toc/modeng/public/JefVirg.html  ↩

7. Jefferson’s Wall of Separation Letter, personal correspondence with Danbury Baptist Association in 1802, http://www.constitution.org/tj/sep_church_state.htm  ↩

8. The Supreme Court decision in McCreary County v. ACLU 545 U.S. 844 (2005), which narrowly held that the display of the Tenb Commandments at a county court violated the Establishment Clause, best exemplifies how difficult it is to inerpret the Religion Clauses in the First Amendment.  ↩

The article originally appeared in the Summer 2013 of the Fezana Journal

Cyrus Mehta

Can Piers Morgan Be Deported for His Comments on Gun Control?

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At the time of writing this blog, more than 48,000 people have signed a petition on the White House website asking that CNN talk show host be deported for his comments on gun control in the wake of the mass shootings at Sandy Hook school.

According to one of the two petitions, “We demand that Mr. Morgan be deported immediately for his effort to undermine the Bill of Rights and for exploiting his position as a national network television host to stage attacks against the rights of American citizens.”

The White House is obligated to respond if the petition gathers 25,000 signatures within 30 days. Mr. Morgan, a British citizen, is not a citizen of the United States. Non-citizens can be deported from the US for a number of immigration offenses, but can Mr. Morgan’s strident comments favoring gun control truly lead to his deportation?

Not really, based on a quick analysis of some of the relevant provisions in the Immigration and Nationality Act.

Mr. Morgan certainly doesn’t seem to be seeking “the opposition to, or the control or overthrow of, the Government of the United States by force, violence, or other unlawful means,” and so he is clearly not deportable under INA 237(a)(4)(A)(iii).  Nor is he one who “endorses or espouses terrorist activity”, under INA 212(a)(3)(B)(i)(VII), and so he’s not inadmissible under that broad provision.  And there’s no reason to think that opposition to the Second Amendment would have serious adverse foreign policy consequences. Indeed, it is more likely the reverse given the international outrage against proponents of gun ownership, especially the ownership of automatic assault weapon, that led to the killings of 20 defenseless children and 6 others. So INA 212(a)(3)(C) does not apply.

Mr. Morgan has nothing to fear, if he indeed fears being deported from the United States, and the petitioners are truly wasting their time and losing more and more credibility  in the wake of an increasing number of gun related deaths. While the United States is clearly not the envy of the world with regard to its obsession for gun ownership that results in more homicides than most other nations, it can at least boast of freedom of speech enshrined in the First Amendment in the Bill of Rights. Anyone, citizen or non-citizen, whether within or outside the US, has the right to peacefully advocate for a change to the US Constitution, including a re-evaluation of the Second Amendment that forms the basis for people to easily own guns, including assault weapons that lead to the tragic and senseless slaughter of innocents.